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Beyond Imperfect Justice: Legality and Fair Labelling in International Criminal Law de Talita Dias

Beyond Imperfect Justice: Legality and Fair Labelling in International Criminal Law: International Humanitarian Law Series, cartea 63

Autor Talita Dias
en Limba Engleză Hardback – 16 iun 2022
This book explores how the principles of legality and fair labelling have developed in international criminal law, from Nuremberg to the International Criminal Court and beyond. It features a comprehensive survey of domestic and international case law, treaties, and other materials, carefully unpacking the different rationales and elements of each principle and the various rules to which they apply. The book invites you to revisit landmark cases, such as those involving atrocities in the Former Yugoslavia, Rwanda, Sierra Leone, Darfur, and Palestine, through a distinctive lens: the finding that all rules substantively affecting the human rights of the accused – from crimes and penalties to labels – must be sufficiently accessible and foreseeable to the ordinary person.
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Specificații

ISBN-13: 9789004510944
ISBN-10: 900451094X
Pagini: 314
Dimensiuni: 155 x 235 mm
Greutate: 0 kg
Editura: Brill
Colecția Brill | Nijhoff
Seria International Humanitarian Law Series

Notă biografică

Dr Talita Dias is the Shaw Foundation Junior Research Fellow in Law at Jesus College, University of Oxford, where she teaches criminal law. She holds a doctorate and a master’s degree in law from the University of Oxford.

Cuprins

Abbreviations

Table of Cases

Table of Statutes

Table of Other Primary Legal Sources

Introduction
1 A Legacy of Imperfect Justice

2 How Can the Principle of Legality Advance International Criminal Justice?

3 What Does Fair Labelling Have to Do With Any of It?

4 What About the icc?

5 This Book’s Outline


part 1
Retroactivity, Legality and Fair Labelling in International Law
1Legality and Fair Labelling at Stake Retroactive Recharacterisation of Crimes and Related Phenomena
1 Introduction

2 The Origins of Retroactive Recharacterisation of Crimes

3 Retroactive Recharacterisation of Crimes in Practice

4 A Taxonomy of Retroactive Recharacterisation of Crimes
aRecharacterisation of Elements Essential for Criminal Liability

bRecharacterisation of Penalties

cRecharacterisation of Other Decisive Rules of Criminal Law

dRecharacterisation of Labels


5 The Recharacterised Rules: Domestic and International Law

6 Related Phenomena
aEhhxpansive Interpretation

bLegal Recharacterisation of Facts


7 Conclusion


2The Principle of Legality in International Law
1 Introduction

2 Identifying and Interpreting the Principle of Legality in General International Law: Relevant Texts
aThe Elements of the Principle of Legality in General International Law
i Nullum crimen, nulla poena sine lege

ii In dubio pro reo

iii Specificity

iv Accessibility and Foreseeability?

v Lex mitior, stricta et scripta?

vi Exceptions?


bThe Requirement of ‘Some Source of Law’ and the Interchangeable Application of Domestic and International Criminal Law

cThe Scope of the Principle of Legality


3 Other Instances of Formative State Practice, Opinio Juris and Article 31(3)(b)-(c) vclt
aUniversal Jurisdiction

bVicarious Jurisdiction and Double Criminality

cFair Labelling


4 The Object and Purpose of the Principle of Legality

5 Conclusion


3The Principle of Fair Labelling in International Law
1 Introduction

2 Brief History

3 What Is in a Name? The General Definition and Justifications of Fair Labelling

4 Justifications for Fair Labelling in International Criminal Law

5 Legal Status and Sources of Fair Labelling in International Law
aFair Labelling as a General Principle of Criminal Law

bFair Labelling as a General Principle of International Criminal Law

cFair Labelling as a Rule of Customary International Law


6 Identifying and Interpreting the Principle of Fair Labelling in International Criminal Law
aDeduction
iMens rea and Correspondence

ii Personal Culpability

iiiNe bis in idem and Cumulative Convictions

iv Proportionality of Punishment

v The Principle of Legality


bInduction from State Practice and Opinio Juris
i Universal Jurisdiction

ii Domestic Implementation of International Crimes under Other Jurisdictional Bases

iii Vicarious Jurisdiction


7 Interpretative Outcome and Practical Implications
aFair Labelling in the Different Operational Stages of International Criminal Law

bFair Labelling and the Relabelling of Crimes or Facts
i Retroactive Recharacterisation of Crimes

ii Legal Recharacterisation of Facts


8 Conclusion


part 2
Retroactive Recharacterisation of Crimes in the Rome Statute
4The Retroactive Application of the Rome Statute Explained
1 Introduction

2 Article 11 and Retrospective Jurisdiction

3 The Four Retrospective Scenarios
aAd hoc Declarations

bunsc Referrals

cRetroactive Withdrawal of Opt-out Declarations for War crimes

dThe Retroactive Application of the Crime of Aggression


4 Article 21(1): Applicable Law and Retroactivity

5 The Retroactive Application of the Rome Statute and the Principles of Legality and Fair Labelling: A Problem for the icc?

6 Conclusion


5The Existing Views on the Retroactive Application of the Rome Statute A Critical Appraisal
1 Introduction

2 Identifying the Existing Views
aRetroactivity Issues Overlooked or Rejected
i ‘The Court is Bound by the Statute’

ii The ‘Universal Conception’ of the Rome Statute

iii The Rome Statute was Accessible and Foreseeable Worldwide


bExisting Solutions to the Retroactive Application of the Rome Statute
i Compatibility Check Solutions

ii Interpretative Solutions

iii Displacement Solution


3 Evaluating Existing Solutions
i The Nature of the Rome Statute

ii Retroactive Recharacterisation of Crimes

iii Nulla poena sine lege

iv Domestic Law


4 Conclusion


part 3
Addressing the Retroactive Application of the Rome Statute: Alternative Approaches to Retroactive Recharacterisation of Crimes
6The Nature of the Rome Statute
1 Introduction

2 Situations Involving a State Party: The Rome Statute as ‘An International Code of Crimes

3 Ad hoc Declarations: Ad hoc Accessions to Rome Statute?

4 unsc Referrals Involving Non-State Parties: The icc as an ‘Ad hoc Permanent Tribunal’?

5 Norm Conflicts in Situations Involving States Parties, Ad hoc Declarations and unsc Referrals: Apparent or Genuine?

6 Conclusion


7Article 21(3) of the Rome Statute and the Application of Criminal Law in Accordance with ‘Internationally Recognized Human Rights’
1 Introduction

2 To What Extent Are the Principles of Legality and Fair Labelling ‘Internationally Recognized Human Rights’?

3 The Legal Effect of Article 21(3) of the Rome Statute: ‘Supra-Legality’ of Human Rights and Application of External Sources of Law?

4 How Should the icc Apply External Sources of Law to Ensure Consistency with the Principles of Legality and Fair Labelling?
aDouble Criminality

bThe Application of Pre-Existing International Law ‘As Such’
i The Overlap between Subject-matter Jurisdiction and Substantive Criminal Law

ii What Does Application ‘As Such’ Mean in Practical Terms?


5 Conclusion


Conclusion


Bibliography

Index